Submissions and discussion
- The Crown quite rightly pointed to the seriousness of count 5, of supply of some 230 g of methylamphetamine. Community safety is a significant concern. The offender frankly told the psychologist of this activity being done in coordination with an outlaw motorcycle gang. This offending is planned and organised and significant in quantity.
- The Crown also noted there was no evidence of engagement with intervention within custody. There is no evidence of considering the options available. That said, there was no evidence of just what may have been available in either the NSW or Queensland facilities. Yet the offender did not have the appearance of presently abusing substances, and on my findings of insight and his attitude, and the evidence of his actions in 10 days out of custody, I accept there has been change in the way that it would be hoped intervention would bring.
- The Crown appeared to argue that this case was not suitable for an ICO on the basis of the seriousness of the charge. With respect I do not consider the approach to determining the availability of an ICO to be solely determined by that criteria. At the same time the Crown very fairly allowed that if a sentence was arrived at which exceeded three years but which could be expressed to be less than three years taking into account time already served in custody then an ICO would be available, a view that could be argued against based on the dicta in Mandranis [2021] NSWCCA 97. The view I take is that the Crown position is the correct one; see Alferink [2021] NSWDC 473 from [59].
- The fundamental submission for the offender is that the principle of totality needs to be given effect in connection with not only the New South Wales offences but also the Queensland offences.
- In determining the appropriate sentence a number of mitigating factors need to be considered. As already noted I accept the offender has expressed remorse and accepted responsibility for his actions. I also accept that he has demonstrated insight and in particular in my view of the impact that it has had on those close to him and I infer he has a realisation of the damage that drug supply has on the broader community.
- His prospects of rehabilitation and not reoffending must be a guarded assessment. This is because of his long-term use of drugs interspersed with periods of abstinence followed by relapse. In prison he has not undertaken any courses. Against that however I find he has been abstinent and he has acted in a responsible way by turning himself in the after being released from prison in Queensland. I am also persuaded by the way he conducted himself in that one week devoting himself to his family and working hard on the new home.
- The reasons for this guarded assessment are the reasons why I agree with the assessment in the sentencing assessment report of a medium chance of reoffending.
- I find that there is an intention of the offender to sincerely make efforts to remain drug free and lead a pro social life in keeping with his partner and other members of his family. Given his previous substance abuse and associations with organised crime in the form of the drug distribution network of an outlaw motorcycle going this may not be easy. Against that, there is the already noted periods of abstinence with which comes pro social behaviour. There is also the prospect of resuming work with a known employer. Despite the medium risk of reoffending, there also is a sound basis for considering the prospects of the offender of remaining pro social to be reasonable.
- The offender argues for an outcome of an Intensive Correction Order (ICO). There is a well recognised three step process for considering whether or not to proceed by way of an ICO. It also should be noted that whilst an ICO outcome sees a person released to the community it does have its own traps in that a breach of it will very likely see the offender returned to custody with no non-parole period. The alternative put forward by the offender is to set a term of imprisonment with a non-parole period expiring not too far into the future. In either case the first step is to determine what the term of the sentence should be, it being common ground that the seriousness of this offending means that section 5 has been crossed.
- I bear in mind the purposes of sentencing are set out in section 3A. They are:
52.1. To ensure the offender is adequately punished
52.2. To prevent crime by deterring the offender and others from committing similar offences
52.3. To protect the community from the offender
52.4. To promote the rehabilitation of the offender
52.5. To make the offender accountable for his actions
52.6. To denounce the conduct of the offender
52.7. To recognise the harm done to the victim of the crime and the community
- In this case it is the purposes of deterrence denunciation and accountability as well as recognising the harm to the community that require recognition. At the same time the sentence should promote the rehabilitation of the offender.
- I propose dealing with the matter by way of an aggregate sentence, and having arrived at the aggregate term, then consider, if section 68 CSPA permits, the suitability of an ICO.
- Before doing so there are two matters that need to be further referred to. Firstly dealing with proceeds of crime in my view is part and parcel of the offending of supplying drugs. Those offences are almost but not entirely, and certainly in the great proportion of cases a necessary consequence of supplying drugs. To supply requires a recipient and almost inevitably in exchange for some quid pro quo in the form of cash. There are cases where the supplier is simply passing the drugs along the line with payment being made by some other means. On the facts of this case however with the offender supplying other down the line suppliers and collecting the price from them and then passing that price back up the chain I consider there is very little criminality in the offence of dealing with proceeds of crime that would not be caught by the supply charge. The dealing with the proceeds of crime is "part and parcel" of the offence of supply; see Redfern v R [2012] NSWCCA 178 per Adams J at [17], with whom McClellan CJ at CL and Hoeben J (as he then was) agreed, where it was stated in relation to supply cocaine offences that the criminality in the charged offences is not increased by being in possession of the money paid to the offender for the supply of the drugs. This was described as "part and parcel" of the offences. Viewed in that way particularly with the amount of $6000 there is a good argument section 5 is not crossed.
- This however is more an argument for totality and concurrency in the sentencing, rather than minimising an offence which itself carries a 15 year maximum sentence. There was no argument that the proceeds of crime offences did not cross the section 5 threshold, and whilst I consider that there is an available argument to that end, moreso with the charge concerning $3800, I accept that both those offences do cross that threshold. There will be concurrency in the sentencing of the proceeds of crime matters to almost a complete but not total extent.
- The second matter is to make plain how the Queensland offending is to be treated. I accept that the offending in Queensland was of a similar nature to that which occurred in New South Wales. Regrettably the facts do not disclose the amount of the drugs concerned in the Queensland offending. All that is really known is that the Queensland offending was largely drug matters of possession in respect of which the offender spent 471 days in Queensland custody, or approximately 15 ½ months.
- The offender relied on the case of Mill v The Queen (1988) 166 CLR 59. Mill is authority for the proposition that where a person has committed offences in two jurisdictions closely related in time and nature the sentencing judge dealing with the matter at the later time should consider what effective head sentence would have been likely to have been imposed if the accused had committed all the offences in one jurisdiction and had been sentenced at the same time. At page 66 the High Court expressly stated that the principle operates on the fixing of a head sentence and is not confined in its operation to fixing a non-parole period. The court endorsed the principle set out in R v Todd [1982] 2 NSWLR 517 concerning the need to take into account the delay in sentencing due to imprisonment in another state due to the uncertainty of what will happen to the offender and the need to give weight to any progress with rehabilitation. I note that Todd also makes reference to the need for a measure of understanding and flexibility of approach. At the bottom of page 66 the opinion is given that "the proper approach which His Honour should have taken was to ask what would be likely to have been the effective head sentence imposed if the applicant had committed all three offences of armed robbery in one jurisdiction and had been sentenced at one time".
- It is also interesting and relevant to note that at page 67 reference is made to the appropriate course being to lower a head sentence where statutory authority does not permit backdating the sentence. This is the position with an ICO. The fact that dating the sentence from the date of the court order will not adequately reflect the seriousness of the crime was said to be preferred to the injustice of a longer head sentence because of the inadequacy of the law to cope satisfactorily with the intervention of state boundaries.
- Accordingly the approach that I will take will be to make an assessment of what the head sentence would have been had all the offending both New South Wales and Queensland been the subject of sentence at the one time.